AGENCY DIRECTIVES AND COURT CASES INCREASE PROTECTIONS FOR SEXUAL ORIENTATION AND GENDER IDENTITY

Recently a Labor Department agency directive, an EEOC suit and a U.S. District Court decision have all increased protections for sexual orientation and gender identity.

OFCCP Directive:  Earlier this year President Obama issued Executive Order 13672, which expressly prohibits federal contractors from discriminating against lesbian, gay, bisexual and transgender employees and applicants, and based on gender identity.  The Office of Federal Contract Compliance Programs (“OFCCP”), has released an agency directive (No. 2014-02), to clarify Executive Order 11246, the Presidential Order requiring affirmative action in federal contracts.  This directive confirms that sex-based employment discrimination includes actions exhibiting a bias based on gender identity or transgender status.  With this directive, the OFCCP has stated that it will investigate allegations of discrimination based upon gender identity.

EEOC Lawsuits:  The Equal Employment Opportunity Commission (“EEOC”) recently has filed lawsuits against a funeral home in Michigan and an eye care clinic in Florida alleging discrimination against transgender male workers presenting as women in violation of Title VII of the 1964 Civil Rights Act. (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.andEEOC v. Lakeland Eye Clinic, P.A.).  These lawsuits are groundbreaking in that the EEOC is attempting to apply Title VII’s prohibition against gender discrimination to transgender workers in the private sector.

The EEOC’s moves should not be completely unexpected, however, as they follow in the wake of its 2012 decision in Macy v. Holder, Case No. 0120120821, where the EEOC considered the hiring discrimination claim of an applicant who had disclosed during the background check process that he was in the process of transitioning from male to female.  The EEOC ruled that Title VII’s gender protections extend beyond biological gender, and include the “cultural and social aspects” of gender.  In the two new lawsuits, the EEOC has sent a clear message that it intends to extend this interpretation of Title VII’s gender protections to private sector employers.

Anti-Lesbian Retaliation Lawsuit:  A nurse in Oregon complained to her employer about coworkers’ comments, including that they had called her a “stupid lesbian” and a “disgusting lesbian.”  The hospital later fired her and she brought suit for retaliation under Title VII of the Civil Rights Act.  A federal judge now has ruled that the nurse has an actionable claim because her complaints constituted protected activity. (Bennefield v. Mid-Valley Healthcare, Inc., Case No. 6:13-CV-252 (D. Ore. 2014)).  The court’s assessment is noteworthy because sexual orientation is not a protected category under Title VII.  Rather, the nurse’s retaliation claim survived on a lesser-seen application of Title VII that an employee’s actions constitute protected activity if he or she has a reasonable belief that the characteristic in question – in this case sexual orientation – is protected.

What These Actions Mean to Employers:  Employers should continue to make decisions based upon merit and take all claims of harassment and discrimination seriously.  Not only should federal contractors and subcontractors be aware that sexual orientation and gender identity are going to receive increased protection from discrimination and retaliation, but private employers also should expect increased scrutiny given the EEOC’s recent activity.  Furthermore, an increase in the filing of lawsuits similar to Bennefield is likely as the media attention associated with the decision will increase employee belief that sexual orientation is a protected characteristic.  Some employers who previously had refused to recognize sexual orientation and gender identity as protected by their policies have changed their position or are considering updating their policies to include these classifications in their EEO and harassment policies.

 On the Horizon: Three recent court decisions impact same sex marriage rights in the state of Missouri.  A Circuit Court Judge for the City of St. Louis ruled last week that Missouri’s 2004 constitutional amendment prohibiting same sex marriage violates the United States Constitution.  This followed a ruling earlier in October by a Jackson County (Kansas City) Circuit Court Judge that Missouri must recognize same sex marriages performed legally in other states.  Still more recently a Federal District Court judge for the Western District of Missouri ruled Missouri’s marriage ban to be unconstitutional.  These cases are being appealed however it seems quite possible that proponents of the law will not win appeals in both state and federal courts.  At this point in time it is wise to consider how your policies are stated with regards to discrimination protection for sexual orientation and whether they account for, or differentiate on the basis of, same sex marriage in affording rights and protections.  If your policies might leave you vulnerable it will be wise to stay abreast of current developments in this area as they progress.

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